Senator Dianne Feinstein introduced legislation in Congress on Monday to protect a million acres of the Mojave Desert in California by scuttling some 13 big solar plants and wind farms planned for the region.

But before the bill to create two new Mojave national monuments has even had its first hearing, the California Democrat has largely achieved her aim. Regardless of the legislation's fate, her opposition means that few if any power plants are likely to be built in the monument area, a complication in California's effort to achieve its aggressive goals for renewable energy.

I think that there is an important lesson here that even "clean" energy sources have environmental downsides. Its funny how things come full circle - thirty years ago I used to argue with people who had obsessive concerns about nuclear waste. I would say that the volume of waste was really small, and in fact coal and oil were no different in that they generated a lot of waste but that they spewed their waste all over the atmosphere -- at least nuclear waste was compact and defined and easy to store.

Anyway, I actually think Feinstein is correct here. Here is the origin of the plot of land:

For Mrs. Feinstein, creation of the Mojave national monuments would make good on a promise by the government a decade ago to protect desert land donated by an environmental group that had acquired the property from the Catellus Development Corporation.

"The Catellus lands were purchased with nearly $45 million in private funds and $18 million in federal funds and donated to the federal government for the purpose of conservation, and that commitment must be upheld. Period," Mrs. Feinstein said in a statement.

I have some bias in this, because my personal charities of choice tend to be private land trusts, that use private funds to buy lands for conservation. I have always argued from an individual liberty angle that people who want land conserved shouldn't be demanding that government take it, they should be putting their money where their mouth is and helping to buy the land. This story actually gives me another argument, because you can see that the private conservation buyers made a mistake in giving it to the Feds. The Bush Administration, looking to score a PR victory in the alternative energy front, reneged on the promised conservation and committed the land to solar projects.

Usually it takes an act of Congress to change an act of Congress, but Team Obama isn't about to let democratic"”or even Democratic"”consent interfere with its carbon extortion racket. To avoid the political firestorm of regulating the neighborhood coffee shop, the EPA is justifying its invented rule on the basis of what it calls the "absurd results" doctrine. That's not a bad moniker for this whole exercise.

The EPA admits that it is "departing from the literal application of statutory provisions." But it says the courts will accept its revision because literal application will produce results that are "so illogical or contrary to sensible policy as to be beyond anything that Congress could reasonably have intended."

Well, well. Shouldn't the same "absurd results" theory pertain to shoehorning carbon into rules that were written in the 1970s and whose primary drafter"”Michigan Democrat John Dingell"”says were never intended to apply?

It is interesting to see the Obama administration using the exact same logic to limit the reach of the Clean Air Act vis a vis Co2 emissions as the Bush Administration did to say the Clean Air Act should have not applicability to CO2 emissions.

Yet one not-so-minor legal problem is that the Clean Air Act's statutory language states unequivocally that the EPA must regulate any "major source" that emits more than 250 tons of a pollutant annually, not 25,000. The EPA's Ms. Jackson made up the higher number out of whole cloth because the lower legal threshold"”which was intended to cover traditional pollutants, not ubiquitous carbon"”would sweep up farms, restaurants, hospitals, schools, churches and other businesses. Sources that would be required to install pricey "best available control technology" would increase to 41,000 per year, up from 300 today, while those subject to the EPA's construction permitting would jump to 6.1 million from 14,000.

So the Bush Administration argues that the Clean Air Act applies to 0% of CO2 sources and they are accused of breaking the law. But the Obama Administration argues the Clean Air Act applies to 0.2% - 0.7% of sources and this is somehow a vastly superior legal argument? The courts rejected 0.0% as non-compliant but they will accept 0.2%?

People often use terrible, specious logic when arguing things political. I have particularly seen this over the last 6 months. The argument typically goes like this:

I make a critique of a policy in the Obama administration, say on health care

Sometimes as an opening response, or sometimes when [the] other person is unable to specifically counter what I have said, they respond instead, "well, your guys fill in the blank ." The latter part might be "got us into Iraq" or possibly "are pushing this birther nonsense."

I respond that fill in the blank was not something I support(ed) and that if by "my guys" they mean Republicans, that I was not a Republican, that I do not think the Republicans have an internally consistent position, and that I disagree with many programs and policies typically advocated by Republicans. And besides, how did this have anything to do with the original conversation?

But of course, it's really the hypocrisy here that is noteworthy. Just earlier today, Darrell Issa, a Republican from California and one of the leaders in calling for an investigation into the Obama Administration's use of "czars", had to admit to Fox News that he had never raised any objections to the Bush Administration's use of "czars". Many of these members who now decry the practice have called on Presidents in the past to appoint "czars" to coordinate activities within the government to address immediate challenges.

That addresses the charge, how? Unbelievably, the White House is resorting to the kindergarten playground argument "well, you started it."

By the way, I had asked before if such an argument had a name. Its clearly a subset of ad hominem arguments, but I suspected that something so common must have be labeled. It has:

Tu quoque (pronounced /tuËËˆkwoÊŠkwiË/, from Latin for "You, too" or "You, also") is a Latin term that describes a kind of logical fallacy. A tu quoque argument attempts to discredit the opponent's position by asserting his failure to act consistently in accordance with that position; it attempts to show that a criticism or objection applies equally to the person making it. It is considered an ad hominem argument, since it focuses on the party itself, rather than its positions.

Today, here on Cape Cod, where every car has an Obama sticker, I was struck by two cars which had Obama stickers as well as this same slogan, a paraphrase of a Ben Franklin bon mot:

Those who give up their liberty for more security neither deserve liberty nor security.

I have absolutely no problem with this bumper sticker in its original context, which I presume was to protest things like the Patriot Act, indefinite detentions, and wiretapping during the Bush Administration (and all retained, so far, by this Administration).

But my question back to them would be -- do you still support this statement in the context of pending health care legislation, which is yet another example of trading individual liberty for security, albeit security of a slightly different type?

In a stunning blow to the Bush Administration in its
war-on-terrorism policies, the Supreme Court ruled Thursday that
foreign nationals held at Guantanamo Bay have a right to pursue habeas
challenges to their detention. The Court, dividing 5-4, ruled that
Congress had not validly taken away habeas rights. If Congress wishes
to suspend habeas, it must do so only as the Constitution allows "” when
the country faces rebellion or invasion.

The Court stressed that it was not ruling that the detainees are
entitled to be released "” that is, entitled to have writs issued to end
their confinement. That issue, it said, is left to the District Court
judges who will be hearing the challenges. The Court also said that "we
do not address whether the President has authority to detain"
individuals during the war on terrorism, and hold them at the U.S.
Naval base in Cuba; that, too, it said, is to be considered first by
the District judges.

The Court also declared that detainees do not have to go through the
special civilian court review process that Congress created in 2005,
since that is not an adequate substitute for habeas rights.

During the17th and 18th century, as various western countries began to reign in autarchs, habeas corpus rights were high on their list of protections they demanded. There is just too much potential for abuse to allow the Executive Branch to hold people (of any nationality) indefinitely without any kind of judicial due process. I refuse to discuss the detentions in the context of their effectiveness in fighting terrorism just as I refuse to discuss immigration in terms of who will pick the lettuce. If there are valid and legal reasons for these guys to be in detention, then the President must allow the judicial branch to confirm them or the legislative branch to amend them.

Today, for the first time in our Nation's history, the
Court confers a constitutional right to habeas corpus on alien enemies
detained abroad by our military forces in the course of an ongoing war.

It strikes me as odd to confer such a right, but then I haven't read Justice Kennedy's opinion yet.

I don't have enough law background to know if this is truly unprecedented in this way, but what it if is? One could easily argue that the nature of the "enemy" here, being that they don't have the courtesy to wear uniforms that indicate their combatant status and which side they are on, is fairly unprecedented as well. As is the President's claim that he has unilateral power to declare that there is a war at all, who this war is against, and who is or is not a combatant. I know from past posts on this topic that many of my readers disagree with me, but I think it is perfectly fine for the Supreme Court, encountering this new situation, sides with the individual over the government.

Bush is acting with the full support of Congress, which on Sept. 14
authorized him to use any necessary force against the undetermined
attackers. According to House Speaker Dennis Hastert (R-IL), the
congressional move enables the president to declare war, "to the extent
that war can realistically be declared on, like, maybe three or four
Egyptian guys, an Algerian, and this other guy who kind of looks
Lebanese but could be Syrian. Or whoever else it might have been.
Because it might not have been them."...

U.S. Sen. John McCain (R-AZ), one of Congress' decorated war
veterans, tried to steel the nation for the possibility of a long and
confusing conflict.

"America faces a long road ahead," McCain said. "We do not yet know
the nature of 21st-century warfare. We do not yet know how to fight
this sort of fight. And I'll be damned if one of us has an inkling who
we will be fighting against. With any luck, they've got uniforms of
some sort."...

Secretary of Defense Donald Rumsfeld said the war against terrorism will be different from any previous model of modern warfare.

"We were lucky enough at Pearl Harbor to be the victim of a craven
sneak attack from an aggressor with the decency to attack military
targets, use their own damn planes, and clearly mark those planes with
their national insignia so that we knew who they were," Rumsfeld said.
"Since the 21st-century breed of coward is not affording us any such
luxury, we are forced to fritter away time searching hither and yon for
him in the manner of a global easter-egg hunt."

Bowing to American pressure on the eve of high-level talks to reduce
economic tensions, China agreed Thursday to terminate a dozen different
subsidies and tax rebates that promote its own exports and discourage
imports of steel, wood products, information technology and other goods.

Thanks a lot. The Bush Administration crows that:

This outcome represents a victory for U.S. manufacturers and their workers

Um, not if they are consumers too, as they all are. And not if their company buys any inputs from Chinese manufacturers.

Napoleon said to never interrupt an enemy when he was making a mistake. I don't consider China an enemy, but it just flabbergasts me that the Chinese taxpayers and consumers see fit to subsidize lower prices for our consumers, and we feel the need to stop them. More here and here.

Those who support a strong regulatory state argue that only the government has the power and the incentives to make sure products are safe. Anarcho-capitalists like myself argue that where consumers demand high-quality or assurances of safety, the market will provide it as competitors, always alert for ways to differentiate themselves, will seek out ways to create a brand around safety or security (see Volvo, for example). If those competitors gain market share, then others will have to emulate them.

The Bush Administration has, at least for mad cow disease, chosen to take the worst of both of these worlds, resisting calls for the government to test more than 1% of the beef while actually barring private firms from competing on the basis of better testing.

The Bush administration said Tuesday it will fight to keep meatpackers from testing all their animals for mad cow disease.

The
Agriculture Department tests less than 1 percent of slaughtered cows
for the disease, which can be fatal to humans who eat tainted beef.

But Kansas-based Creekstone Farms Premium Beef wants to test all of its cows.

Larger
meat companies feared that move because, if Creekstone tested its meat
and advertised it as safe, they might have to perform the expensive
test, too.

Basically, Creekstone's competitors are asking to be protected from having to respond to innovation by their competitors. Their response is roughly equivalent to Barnes and Noble saying in 1998, "Amazon should be banned from selling books on the internet because if they do so, we may have to bear the cost of doing the same." No shit. Deal with it.

Just before my body decided to purge itself for a few days, USA Today ran a story that the NSA was doing more than just listening in on overseas calls to suspected terrorists. It claimed that the NSA was also compiling a database of domestic call records.

The National Security Agency has been secretly collecting the phone
call records of tens of millions of Americans, using data provided by
AT&T, Verizon and BellSouth, people with direct knowledge of the
arrangement told USA TODAY.

This bothers me, as much for separation of powers issues that I will describe below as for any worry about the data being collected. Conservatives, however, immediately criticized the article, as summarized well here, making a number of points:

1. Its old newsShame on conservatives. This is the same tired line that Clinton used to drive them crazy with. The theory here is that once a story has run a full news-cycle, it is then too late to report on it or show any further outrage about it. Once the political boil is lanced, its time to "move on". Sorry, I don't buy it.

2. USA Today is exaggeratingThe USA Today and those who picked up on the story are indeed sloppy, perhaps purposefully to make a better story, in blurring the line between collecting phone numbers and eavesdropping. To date, the evidence is only that phone numbers were collected, which is in fact less intrusive than eavesdropping. It still pisses me off, for reasons below.

3. The IRS already has more dataYes, and that bothers me too. Does anyone really doubt that IRS data has been peeked at and used for political purposes? And I am flabbergasted at how far conservatives have wandered over the last several decades that they hold up the IRS as a model to be emulated. But here is the key difference that I will get into in a minute: The IRS is allowed to collect this data by legislative statute passed by Congress. This statute includes rules for data management and access, with steps for judicial review and criminal penalties for its violation. The NSA data base has ... none of this. No legislative authorization. No process and privacy protections. No penalties for misuse of data. No judicial review steps.

4. Its no big deal, and its good for youMaybe. Or maybe not. The trouble is that we are only getting tiny leaked glimpses into whatever the administration is doing. The President has created the theory that he can declare war against a vague and in fact impossible to define target, and then take on absolute dictatorial non-reviewable powers to prosecute this war in any way he likes, and that any steps taken in this war can be considered legitimate steps (rather than overstepping his bounds) based on his say-so alone.

The problem is not the database per se, but the fact that the NSA and this administration feels it can do anything it wants outside the bounds of traditional separation of powers. If the NSA needs a phone call database, then the President can go to Congress and solicit such an authorization. A well-crafted piece of legislation would put strict limits on how the data is used, would provide some sort of outside review of its use, and would provide for stiff penalties for its misuse. This is what I wrote previously:

Here is how we have generally interpreted the 4th amendment: The
legislative branch sets the ground rules, as followed by the
Administration. The administrations selection of targets is reviewed
by the Judiciary (warrants) and is also subject to later review at
trial (via the admissibility of evidence). What we try to avoid is
allowing the same person to set the rules, choose the target, and
perform the surveillance, all in secret and without outside review.
The problems with the NSA wiretapping program is not that it is wrong
per se, but that it may violate this process. The administration is
claiming the right to choose the target and perform the surveillance
under the own rules and in secret with no possibility of review.

What really irks me about this is the crass politics going on. Does anyone doubt that if a Clinton White House had been revealed doing this that Conservatives would have been screaming in outrage? And liberals are, if anything, even funnier. These are the folks that trust the government but distrust corporate America. So why is it that they are upset about a transfer of phone records from evil old AT&T to benevolent old Uncle Sam? Except, of course, because it is being done by a Republican.

Update: This database may be being used to see who reporters are talking to in order to root out leaks. Anyone uncomfortable now? And this is priceless:

Under Bush Administration guidelines, it is not considered illegal for
the government to keep track of numbers dialed by phone customers.

Duh. Under Bush Administration guidelines, nothing the administration wants to do is considered illegal.

More: Several sources have used the Supreme Court decision to make the case that collection of the phone records is legal without a warrant. Here is a key passage:

Petitioner in all probability entertained no actual expectation of
privacy in the phone numbers he dialed, and even if he did, his
expectation was not "legitimate." First, it is doubtful that telephone
users in general have any expectation of privacy regarding the numbers
they dial, since they typically know that they must convey phone
numbers to the telephone company and that the company has facilities
for recording this information and does in fact record it for various
legitimate business purposes. And petitioner did not demonstrate an
expectation of privacy merely by using his home phone rather than some
other phone, since his conduct, although perhaps calculated to keep the
contents of his conversation private, was not calculated to preserve
the privacy of the number he dialed. Second, even if petitioner did
harbor some subjective expectation of privacy, this expectation was not
one that society is prepared to recognize as "reasonable." When
petitioner voluntarily conveyed numerical information to the phone
company and "exposed" that information to its equipment in the normal
course of business, he assumed the risk that the company would reveal
the information to the police,

First, it would be interesting to see if the SCOTUS would agree that this ruling extends to sharing such information with non-law-enforcement branches of the government (NSA is not a law enforcement arm). Second, it would be interesting to see if the Court came to the same conclusion if the target for the the data sweep was "every citizen in the US" and not just targets of law enforcement investigations.

Third and most importantly, this decision seems to suck. This exact same logic seemingly applies to any piece of data submitted to any private third party unless the data is specifically protected (e.g. medical records). Sorry, but this is wrong. I should be able to have commercial transactions with third parties without the expectation that the government can take the records for its own use without any kind of a warrant.

Also, the premise that this ruling is based on is provably false, though only by technology instituted after the decision. There is an entire industry of phone company services and 3rd party technologies aimed right at this area of phone call (and email; and Internet surfing) anonymity and privacy. With the Internet for example, there is a very, very clear expectation that sharing information with a company for one purpose (e.g. to complete a transaction) does NOT authorize the company to use or share the data for any other purpose. This use of transaction data and its limits is a CRITICAL and front-of-mind issue for modern communicators. It is absurd to say, as the justices did, that:

When
petitioner voluntarily conveyed numerical information to the phone
company and "exposed" that information to its equipment in the normal
course of business, he assumed the risk that the company would reveal
the information to the police

The implication is that by giving a company data for use in a transaction, we are giving them an unwritten license to do whatever they want with the data. Do you believe you are granting this? Is it true that you "entertain no expectation of privacy" in such transactions? If you agree with this ability, then I assume you also agree that the government should be able to see all your:

Credit card bills

Records of who you have emailed

Records of which Internet sites you have visited

Records of what searches you made in search engines

These are all 100% amenable to the logic the Justices used in this decision.

I don't mean that law enforcement shouldn't be able to subpoena these records ever. But they need to at least go to a judge and say "we want to see Warren's phone records from X to Y date because we suspect him of Z for the following reasons."

The Supreme Court on Monday refused to hear the appeal of Jose
Padilla, a U.S. citizen held in a military jail for more than three
years as an "enemy combatant." The Court, however, declined to dismiss
the case as moot, as the Bush Administration had urged. Only three
Justices voted to hear the case, according to the order and
accompanying opinions. The case was Padilla v. Hanft (05-533).

The decision was a victory for the Bush Administration in one
significant sense: by not finding the case to be moot, the Court leaves
intact a sweeping Fourth Circuit Court decision upholding the
president's wartime power to seize an American inside the U.S. and
detain him or her as a terrorist enemy, without charges and -- for an
extended period -- without a lawyer. The Court, of course, took no
position on whether that was the right result, since it denied review.
The Second Circuit Court, at an earlier stage of Padilla's own case,
had ruled just the opposite of the Fourth Circuit, denying the
president's power to seize him in the U.S. and hold him. That ruling,
though, no longer stands as a precedent, since the Supreme Court
earlier shifted Padilla's case from the Second to the Fourth Circuit.

I don't even pretend to understand all the procedural stuff, but I find it amazing that the effective suspension of habeas corpus, particularly when the "war" and "enemy" that is used as its justification is so amorphous and open-ended, isn't something the Supreme Court would like to sink its teeth into.

Apparently, the Justices were reluctant to address the case since it has now been made "hypothetical" by the transfer of status of Padilla from enemy combatant held incommunicado indefinitely to a more mainstream justice track. However, this transfer occurred, as the appeals court pointed out angrily, in a transparent effort by the Bush administration to avoid judicial review of indefinite detentions. Which raises the possibility that the administration could hold hundreds of people in such detention, systematically changing the status of any individual whose case comes for review, thereby avoiding review of the program in total. As Ruth Bader Ginsburg wrote, "Nothing prevents the Executive from returning to the road it earlier constructed and defended."

One wonders by this logic if the segregationist south could have indefinitely postponed Supreme Court review via Brown vs. Board of Education just by letting individuals like Linda Brown individually into white schools whenever their cases got to the Supreme Court.

And still I ask, as I did here, where the hell is Congress? I am sorry the Supreme Court failed to review this but the Constitution created this group called the legislative branch that is supposed to have the power to change the law. If law is unclear here, they could make it clear.

In the first of what promises to be the first of a number of lawsuits against 527 groups under the horrendous McCain-Feingold act, the Federal Election Committee is suing the Club for Growth for its television adds in 2000 and 2002. Essentially, the FEC is attempting to declare the Club for Growth to be under the control of and an arm of the Republican Party, and therefore subject to McCain-Feingold spending and donation limitations.

This is absurd. First, current election law and McCain-Feingold are a brazen assault on the first amendment, and shouldn't apply to anyone. Second, to the extent that they are allowed to be applied to the two major political parties, their reach should be limited as much as possible to allow private citizens full freedom of political speech.

While the Club for Growth often supports Republicans over Democrats, browsing their web site makes it clear that they are by no means a shill for the Republican party. They are strong supporters of reduced regulation and taxes, and have been just as hard on Republicans of late when Bush, Delay and Company have apparently abandoned these goals. I have supported The Club for Growth for years and I am by no means a Republican.

Several lefty blogs have gleefully piled on because they don't like the Club for Growth. This is very very shortsighted. My sense is that the case against CfG is no better or worse than the case they can have against MoveOn or Soros or whatever. The CfG suit may well be a Trojan Horse first case to immunize the Bush Administration and the FEC against charges that they are going after the President's critics. Once immunized, under this theory, lefty organizations will be next.

Bloggers represent one of the strongest and most vocal constituencies for freedom of speech -- we should be united in opposing this kind of action, whoever it is against.

Over the last 10 years, it certainly appears that the stakes have been raised substantially in judicial nominations, to the point that the approval of federal judges seems to be the number one issue in front of the Senate, even ahead of matters like Social Security reform or tax policy. Sure, in the 80's we had some high-profile confirmation battles (e.g. Bork, Thomas), but those were for the Supreme Court and might be narrowly interpreted as revolving around issues of abortion and perhaps affirmative action. Certainly both sides of the abortion debate are gearing up to duke it out over Supreme Court nominations, but most of the current brouhaha in the Senate is over lower level appointments that can't reasonably be interpreted as having much influence on abortion. So something else must be going on.

To understand what this "something else" is, I want to digress a bit into the analogy of campaign finance (yes, its analogous). I won't conceal the fact that I think that the most recent round of campaign finance "reform" has been a disastrous infringement on first amendment rights, the implications of which are only just coming to the surface. However, my opinion of it is irrelevant to the analogy. While proponents of campaign spending restrictions point to the "corrupting influence" of large sums of money in the election process, what no one ever mentions, though, is why such large sums of money are being spent in the first place. It is this latter issue on which I want to focus.

The reason that politics have become so high-stakes, at least in dollar terms, is because the government controls so much more of the economy and our lives. A century ago, the federal government had the power to raise and lower tariffs, and some limited control of the money supply, and occasionally gave out land grants to new railroads, and that was about it. Today the government can tax an individual or corporation six or seven different ways, determines how much you must pay your employees, controls much of the health care system, holds product design or pricing approval authority for many industries, controls access to critical raw materials, etc etc. If the government decides it does not like a particular person or industry, it can charge it with billions in extra costs in taxes -- or if it finds an industry politically expedient, it can pump it up with billions in subsidies. Every year, the government takes literally trillions of dollars from one unfavored class of citizen and gives it to a more politically favored class.

With stakes this high, it is no wonder that more and more people are willing to pay more and more money to let their voice be heard in the political process. Greater amounts of money flowing into politics is not a sign of a broken democracy, but just its opposite. More political spending means more money spent on speech, which in turn results from more people trying to add their voice to the political process more intensely. Rather than deal with the root cause, the growing power of government to arbitrarily transfer wealth, the country instead lurches from one half-assed attempt at political speech control to another.

So here is where I am going with this analogy. Today, it increasingly appears to people that the process for approving Presidential judge nominations in the Senate is broken. The opposition party, first with some tentative steps by Republicans under Clinton and then with wholesale defiance by Democrats under Bush, are increasingly making the appointment of judges tremendously contentious. I would argue though, as with campaign finance, that the problem is not with the process, but with the changing power of judges. Over the last 30 years, judges have increasingly gone beyond interpreting and applying law to creating new law on their own, a power that is as constitutionally unjustified as it is unchecked.

To understand this, lets first start with an example of what I would consider appropriately constitutional behavior by judges. This is an example from a case brought against the Bush Administration, demanding the release of terrorist suspects the administration has held indefinitely. The Bush administration argued that the war on terrorism was different from other crimes, and that it required an enhanced ability to indefinitely intern suspects. The US District judge in the case disagreed, and note particularly the language he uses (emphasis added):

U.S. District Judge Henry F. Floyd ruled Monday that the president of the United States does not have the authority to order Jose Padilla to be held indefinitely without being charged.

"If the law in its current state is found by the president to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the president should prevail upon Congress to remedy the problem," he wrote.

I can find no more perfect example of a judge appropriately fulfilling his constitutional role. For him, the necessity or merit of being able to hold terrorist suspects without charges is IRRELEVANT to him. Judge Sweet might well consider holding suspects without charges in these cases to be the most necessary thing in the world, or alternately the most reprehensible. But his job is not to decide if such a power SHOULD exist, his job is to decide if such a power DOES exist. And he says it does not -- and to call the legislature if you want one, because it is their job to create new law.

Unfortunately, there is a growing theory of jurisprudence that creates an expanded role for judges. In this theory, judges are empowered to act sort-of as the institutional Dali lama, the wise person who descends from the mountain from time to time to correct moral lapses made by legislatures. If you are a Star Trek fan, think of this theory placing judges in the role of the Organians, parachuting into human affairs from time to time to correct moral problems. As Justice Scalia put it in a recent decision:

The Court thus proclaims itself sole arbiter of our Nation's moral standards, and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures.

The problem with this theory is two-fold. First, it calls for making judges the rulers in a benevolent dictatorship, for there really are no checks on judges elected for life who suddenly have the power to create new law. Sure, the notion of a benevolent dictatorship of people with strong moral compasses has been a compelling notion to some through the centuries, but it never works and always ends up getting abused. Which leads us to the second problem with the theory, which is that there is no constitutional basis for judges creating new law, nor would the power-paranoid writers of our Constitution ever have allowed it.

Now, you may be thinking me paranoid to think of judges as taking on the power to write law. I offer proof in two parts. First, doesn't the exponentially higher stakes and greater attention today in approving judge appointments point to the fact that judges somehow have more power than they had a few decades ago? Second, lets look at an example.

[Judge Robert Sweet] explained that the United States Court of Appeals for the Second Circuit in New York recognized a qualified First Amendment privilege that protects reporters from being compelled to disclose their confidential sources

Judge Sweet defended the existence of this privilege by saying:

he took note of the important role of confidential sources in news investigations of the Watergate, Iran-contra, Monica Lewinsky and Abu Ghraib scandals

Do you see the difference from Judge Floyd's opinion above. In this case, the Judge does express his opinion, that confidential sourcing has played an "important role" in unwinding a number of political scandals. He uses this as a justification to create a privilege for reporters to conceal evidence and ignore subpoenas from a federal investigation. Recognize, as background, that whatever shield law for reporters that may exist in your state, there is NO press shield law allowing concealment of sources at the Federal level. And, the First Amendment itself only says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

I don't see anything in that text that implies that the press can legally get away with obstructing justice while other citizens not in the press, like Martha Stewart, go to jail for obstructing justice. Now, you might think that the press should have such a privilege. Heck, I might in fact support some type of privilege. But the fact is that right now, it does not exist under the law and judge Sweet should have given judge Floyd's answer, which I can't resist paraphrasing:

If the law in its current state is found to be insufficient to protect the media in doing valuable work, then the press should prevail upon Congress to remedy the problem

Now I am sure that I am vulnerable here to Constitutional scholars saying that I am a neophyte to Constitutional Law and I don't understand the chain of court decisions that lead to, in the case above, the press privilege precedent. I have two responses to this. First, I am tired of Constitutional Law being made into this arcane specialty where only a few experts can participate in the discussion, like Jesuits arguing about some arcana of a papal encyclical. The Constitution is a very short and straight-forward document. Anyone can understand it, and should. I don't need 10 years of legal training and a piece of paper from the state bar to tell me that I see nothing about hiding information from police investigations in the First Amendment (heck, there are only 50 words there - where can it be hiding?)

My second response is specifically aimed at the chain-of-precedent reasoning for so many of the new rights and privileges that seem to be created nowadays. Of course, precedent is critical in making law work - Common Law is all precedent and even in our constitutional system, relying on precedent saves a lot of rework (e.g. the Supreme court already decided this case X way so until they revisit it, we will follow that precedent).

However, something else seems to happen in this chain. Have you ever taken an original document, and Xeroxed it, and then made a copy of the copy, and then a copy of the copy of the copy, etc. through 10-20 generations? What happens? Typically somewhere along the way, some small flaw or spot on the machine causes a spot to appear on the copy. As the copy is copied through successive generations, the spot grows and begins to stand out, until it is just as much a part of the document as the original text. The spot, however, is an artifact that is reinforced through generations, like kids repeating a mistake in the game telephone. That is what some of these court decisions feel like to me. How did the NY circuit court find a press privilege - well, someone found a very very limited privilege out of thin air years ago, and then another judge used that as a precedent for expanding the privilege, until it is set in concrete today. Just like the document experts in the CBS memo fraud want to get hold of originals of the documents to remove all the artifacts of copying to make the best decision on authenticity, so I in turn wish that courts would sometimes set aside all those intervening layers of other judges' decisions and just go back to the original damn document and work straight from the Constitution.

Liberals and some libertarians support have supported this theory of jurisprudence to date because to a large extent many of their causes have been net beneficiaries. And, if history teaches anything, trashing constitutional controls to achieve near-term policy goals nearly always comes back to haunt those who do it. I understand the temptation -- for example, I oppose the death penalty for minors, and left the recent Supreme Court decision on the death penalty out of this post because I thought it a reasonable role for the Court to reinterpret "cruel and unusual". But others, including Professor Bainbridge whose work I like a lot, and Justice Scalia whom he quotes, would argue that I am letting a favorable outcome blind me to the same problem of courts writing law.

Postscript: You may have noticed I did not mention Roe v. Wade. In fact, I tend to avoid abortion issues like the plague. In part this is because I have friends that are strongly, perhaps even radically pro-choice and friends who are strongly, perhaps even radically ant-abortion. Like a lot of Americans, I believe that a fetus is not a human life at conception plus one day and it is very definitely a human life to be protected at birth minus one day, and I worry a lot where the dividing line is in the middle between life and non-life. However, I will make two comments in the context of this post about Roe v. Wade that I think are fairly belief-neutral:

I have never understood how "privacy" drives legality of abortion. The clear question is "is the fetus a human life". If it is not, then since it must instead just be tissue in a woman's body, then I accept her right to do with it as she pleases. However, if the fetus is a human life, then it has rights of its own and the woman may not violate these except in special circumstances, no matter how much privacy she has. So the decision is really one of "is the fetus a life"? The Constitution does not give us much guidance on this question, but typically these types of uncertain decisions have been left to the states. It is only with Roe v. Wade that the Court began taking on a new role of exercising a moral override over legislatures in certain areas (see Organian / Benevolent Dictatorship example above)

I can't find a privacy right in the Constitution, though I will say I wish it was there, and would support a well-worded amendment in that area. However, if the Court in its greater wisdom feels like there is a privacy right buried in there somewhere that restricts government intervention into what we do of our own free will with our own bodies, then there are a HELL of a lot of laws out there that need to be declared unconstitutional beyond just anti-abortion law, including: narcotics laws, prostitution laws, the FDA, the tobacco settlement, alcohol prohibitions, helmet laws, seat belt laws, etc.

For years, a number of more conservative groups have been warning that the messages given by Islamic leaders and holy men in English for world consumption were far different than the messages given to their own people in Arabic. And indeed, their translations of Arabic speech aimed at Muslims can be pretty scary. Few Westerners believed or wanted to believe these warnings, preferring to hope that most arabs were like themselves, basically peaceful and supportive of democracy and plurality.

For years, I was skeptical of these claims. I felt like it would require extraordinary laziness and incompetance on the part of the media to just digest the English statements of Islamic leaders without ever checking out what they were saying in Arabic. However, over the past couple of years, I have lost all faith in the work ethic, intelligence, and dilligence of the western media, and have come to believe that it would be enitrely possible for Arab leaders to manipulate Western media in this way.

For this reason, a part of this article (hat tip LGF) about German reactions to Musilm violence in the Netherlands is interesting to me. It seems that, after the recent violence, the media finally had the idea to actually listen in on what some Islamic religeous leaders are saying in Arabic:

"These Germans, these atheists, these Europeans don't shave under their arms and their sweat collects under their hair with a revolting smell and they stink," said the preacher at the Mevlana Mosque in Berlin's Kreuzberg district, in the film made by Germany's ZDF public TV, adding: "Hell lives for the infidels! Down with all democracies and all democrats!"

Beyond the bizarre body hair reference, this is NOT what the media has been saying that Islam is teaching here in the west (I don't imply this represents the majority, but the media has essentially claimed it does not exist at all).

By the way, the proposed "solotions" strike me as nuts, and should also be enlightening to anyone in the US who looks up to Continental Europe as a counter-weight to percieved creeping fascism with the Bush Administration. I may not be a fan of the Patriot Act, but nobody in the Bush administration, with far more provocation, has suggested anything as loony as making all religeous ceremonies English-only.